Can I Sue a Lawyer for Incompetence?

By Blake O’Connor and Ugur Nedim

Law firm Shine Lawyers is facing civil proceedings in the Queensland Supreme Court for allegedly breaching its fiduciary duties to a client by failing to competently represent him in a compensation case.

Adelaide lawyer Andrew Rogers is suing the firm over a personal injury claim dating back to 2001. He alleges that poor advice and representation from the firm’s lawyers resulted in a reduced damages award.

Mr Rogers specifically claims that the lawyers’ failure to obtain a statement from him about the impact of the jet ski accident on his legal practice led to an award which was hundreds of thousands of dollars less than he was entitled to.

Rogers ultimately received $600,000 in damages for injuries caused, but claims he would have received $1 million if the case had been properly prepared. He is also seeking the reimbursement of legal fees in the sum of $190,000.

Shine Lawyers denies the claim and says the case will be “defended vigorously”. Despite the firm’s attempt to have the proceedings struck out, the Queensland Court of Appeal cleared the way for Mr Rogers to pursue his claim.

Advocate’s Immunity

The doctrine of ‘advocate’s immunity’ generally protects lawyers from civil claims arising from conduct that is intimately related to court proceedings.

This means clients are normally unable to sue solicitors or barristers for poor performance in the courtroom, or decisions in the course of proceedings which may affect the outcome.

The doctrine is controversial – after all, why should lawyers be protected against substandard work when other professionals and tradespeople can be sued for negligence, from doctors and accountants to carpenters and plumbers?

Indeed, the doctrine does not exist – or has been abolished – in a number of other countries, including New Zealand, Canada and the United Kingdom.

High Court’s view

In the leading Australian authority of D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, the High Court of Australia upheld the doctrine, primarily due to public policy considerations – primarily the public interest in cases being finalised unless there is a right of appeal.

That case involved a Victorian man who was charged with rape. He was represented by a lawyer from the Legal Aid Commission who advised him that if he pleaded guilty to the offence, he would likely receive a suspended prison sentence whereas if he pleaded not guilty, he would likely be convicted and sent to prison.

Based on that advice, the man pleaded guilty but was nevertheless sent to prison. The understandably aggrieved man then sued for negligence.

In dismissing the man’s claim, the High Court found that advocate’s immunity continues to exist in Australia, and can only be repealed by legislation.

It noted that the immunity has existed for centuries, and that it extends to jurors, judges and witnesses, as well as solicitors and barristers.

The Court  emphasised the public interest in ensuring cases are finalised once a verdict or judgment is delivered, or a settlement reached, finding that abolishing the doctrine would lead to a large number of cases being reopened, thereby placing a heavy burden on the legal system.

The Court’s remarks about a rise in court proceedings are, however, at odds with the experiences of common law countries such as the United Kingdom, which have not seen a significant influx in lawsuits for negligence after abolishing the doctrine.

Limits to advocate’s immunity

Despite its findings in D’Orta-Ekenaike, the High Court has subsequently clarified that advocate’s immunity does not extend to everything a lawyer does.

In Kendirjian v Lepore [2017] HCA 13, the full bench found that the immunity does not protect a lawyer who fails to advise a client about a settlement offer. The decision is authority for the proposition that advocate’s immunity does not extend to various aspects of the negotiation process.

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One comment

  1. Brenda Mahoney

    Our solicitors missed out on getting us compensation against A Current Affair, after they defamed us. This defamation has caused us to lose our house to an arsonist. The police were told that every officer had to watch the program, this resulted in police bias and corruption. The police investigation into the fire is still ongoing and we have ourselves paid to send evidence to America in the hope they can assist us, as the police refuse to make an arrest due to insufficient evidence, we think the police are scared that it will show how negligent they were in protecting us from domestic violence resulting in arson of our home. We have gone from owning and living in our own house to absolutely nothing and law after law was broken and not one person helped us, the police let it happen and even assisted with it and our solicitor should have been all over it but couldn’t be bothered, our first solicitor passed away and it was hell from there on. We were stalked and assaulted while protected by an AVO and police wouldn’t do anything which escalated the constant violence. There was several attempts on our life, which I still have CCTV footage of but the police refuse to look at it, our solicitor just said to go higher but the corruption was there too. We were constantly in court on a weekly basis which is supposed to be against the law because they were trying to waste our money so we couldn’t afford to fight in the Supreme Court.
    We have been wronged over and over and lost everything and have been physically and emotionally tormented.
    I received an email from the company in America who I sent evidence to, regarding the arsonist attack. The company advised that they are still confident on obtaining the evidence which will put the person in jail for burning down our house. It is the only evidence as the police failed to believe us in the beginning because of their bias towards us, there was so much evidence available at the time of the incident but failed to take any. I was informed by the detective that we were the only ones that they looked at at the time and didn’t realize until it was too late that it was as a result of someone wanting to force us out. We have not been heard or believed because of defamation by ACA. Our solicitor told us we had to wait until the investigation come up with a cause before we could take action against ACA but then later turned around and said it was too late but if the investigation proved arson, that ACA could be liable for our loss. Our solicitor didn’t even watch the defaming program. It all seemed too much for our solicitor and I think he missed out on law suits that could have made them money.
    Anyway, I hope you can help, no one else has bothered and we have suffered more violence than anyone should ever suffer, we are still homeless and suffering.
    Kind regards
    Brenda and Andrew Gunn

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